People v Vialva

[*1] People v Vialva 2009 NY Slip Op 50594(U) [23 Misc 3d 1105(A)] Decided on February 20, 2009 Criminal Court Of The City Of New York, Kings County Gerstein, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 20, 2009
Criminal Court of the City of New York, Kings County

The People of the State of New York

against

Sherwin Vialva, Defendant.



2008KN013896



Charles J. Hynes, District Attorney (Donna Moustapha, Esq. of counsel), for the People.

Seymour James, Esq., The Legal Aid Society (Reda Woodcock, Esq. of counsel), for Defendant.

Michael J. Gerstein, J.

At issue in this case is whether Defendant can be charged with Operating a Motor Vehicle while under the Influence of Alcohol, based upon his admission that he was driving his 2004 Toyota when it was involved in an accident. Defendant argues, in essence, that CPL § 60.50, which provides that a person may not be convicted of an offense solely upon evidence of his own confession, applies to criminal court accusatory instruments, and that without the Defendant's statement, there is no proof of driving while impaired or intoxicated. (Defendant's Aff. ¶6.)

While some Courts have chosen to extend the confession corroboration rule to Criminal Court accusatory instruments, (See e.g. People v. Kaminski, 143 Misc 2d 1089, 542 NYS2d 923 (Crim. Ct. NY Co. 1989)), we instead follow the holding in People v. Heller, 180 Misc 2d 160, 167, 689 NYS2d 327, 333 (Crim. Ct. NY Co. 1998), that corroboration may be required for accusatory instruments only where the legislature specifically imposes such a requirement as a matter of policy. Defendant's motion to dismiss the Complaint on these grounds is therefore denied.

Legal and Factual Background

Defendant was charged by a Complaint dated February 22, 2008, with Operating a Motor Vehicle while under the Influence of Alcohol, in violation of VTL §§ 1192(1), (2) and (3). The original Complaint, signed by Police Officer Joseph Mignone states, in relevant part:

[T]he Deponent is informed by the Defendant's own admissions that the Defendant was driving the Defendant's own vehicle at the approximate above time and place and that the Defendant's [*2]vehicle was just involved in an accident.

Deponent further states that at the approximate above time and place, Deponent observed the Defendant exhibiting signs of intoxication...

Deponent further states that Deponent is informed by the attached chemical test analysis that at the time indicated, the Defendant submitted to a chemical test to determine the Defendant's blood alcohol concentration with a result of .173% alcohol content.

On November 13, 2008, Defendant filed a motion to dismiss for Facial Insufficiency, pursuant to CPL § 170.30(1)(a) upon the grounds that the complaint is defective within the meaning of CPL §§ 170.35, 100.40, and 100.15. Defendant's argument is twofold. First, Defendant argues that CPL § 60.50, providing that a person may not be convicted solely upon his confession, applies to misdemeanor Complaints. Second, Defendant argues that because there is no corroboration of Defendant's admission, the Complaint is rendered insufficient to allege the crimes charged. (Defendant's Aff. ¶6).

On January 15, 2009, the People served and filed a Statement of Readiness with the notation, "Attached: SSI (People's Response)," along with the Superseding Information. The Superseding Information, signed by Police Officer Joseph Mignone states, in relevant part: The Deponent states that, at the approximate above time and place, Deponent is informed by the Defendant's own admissions that the Defendant was driving Defendant's vehicle, namely a 2004 Toyota, Pennsylvania license plate number, GRT3493, and that said vehicle was just involved in a motor vehicle accident.The Deponent states that Deponent observed said vehicle to have damage in that the rear bumper of said vehicle was dented and slightly detached from the vehicle.Deponent further states that the Deponent observed the Defendant exhibiting signs of intoxication...Deponent further states that Deponent is informed by the attached chemical test analysis that at the time indicated, the Defendant submitted to a chemical test to determine the Defendant's blood alcohol concentration with a result of .173% alcohol content.

Defendant argues in Reply that the Superseding Information remains facially insufficient despite the above additions.

CPL § 60.50 does Not Apply To Accusatory Instruments

CPL § 60.50 provides: "[a] person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed." [emphasis added]. The corroboration of confession rule aims to [*3]protect against the "danger that a crime may be confessed when no crime in any degree has been committed by anyone." People v. Lytton, 257 NY 310, 178 N.E. 290 (1931). See also People v. Reade, 13 NY2d 42, 191 NE2d 891, 241 NYS2d 829 (1963). This rule, however, limits its application to criminal convictions, and contains no language that might require its application to Criminal Court complaints.

The jurisdictional requirements for a Criminal Court Information are set forth in a different section of the Criminal Procedure Law (Title H., governing Preliminary Criminal Court Proceedings), and merely provide that a) a Criminal Court accusatory instrument must comply with the requirements of form described in CPL § 100.15; and b) "[t]he allegations of the factual part of the [Complaint or Information], together with those of any supporting depositions which may accompany it, provide reasonable cause to believe that the Defendant committed the offense charged in the accusatory part of the information." CPL § 100.40(1)(4).[FN1] Nothing in CPL § 100.40 requires or even references the corroboration of confessions rule.

Defendant cites People v. Kaminski, supra , and People v. Alvarez, 141 Misc 2d 686, 534 NYS2d 90 (Crim. Ct. NY Co. 1988), both of which held that CPL § 60.50 applies to Criminal Court accusatory instruments. We decline to follow these cases. Both People v. Kaminski, supra , and People v. Alvarez, supra , relied on the First Department's ruling in Matter of Rodney J., 108 AD2d 307, 489 NYS2d 160 (1st Dept. 1985). The Court in Rodney J., supra , however, was not interpreting CPL § 100.40, but Family Court Act § 311.2. The Court noted that a 1983 Amendment to the Criminal Procedure Law applied the confession corroboration rule to criminal indictments. See CPL § 190.65 (evidence is not legally sufficient for the purpose of an indictment when "corroboration that would be required, as a matter of law, to sustain a conviction for such offense is absent."). Noting that this Amendment conferred to adult defendants procedural safeguards that were not given to youthful offenders, the Court extended the confession corroboration rule to Family Court petitions, "[d]espite the lack of an express statutory requirement." Matter of Rodney J., 108 AD2d at 313, 489 NYS2d at 164.

A Family Court Petition, however, differs from a Misdemeanor Complaint in that it may charge felonies as well as misdemeanors. This was the case in Matter of Rodney J., supra , where the respondent was accused of Grand Larceny in the Third Degree (PL § 155.30(5)), a class D Felony. The ruling in Rodney J., supra , is therefore limited to the holding that CPL § 60.50, made applicable to felony indictments by CPL § 190.65, would also apply to the Family Court instrument that originates all juvenile proceedings, whatever their gravity, in Family Court.

Similarly, a felony indictment differs from an accusatory instrument in that it requires a different standard of proof. In order to vote an indictment, a Grand Jury must find "legally sufficient evidence" to support the charges. A Criminal Court Complaint merely requires "reasonable cause," a lower standard. Compare CPL § 70.10(1) and (2). Unlike the definition of "reasonable cause," "legally sufficient evidence" mirrors the rule in CPL § 190.65 that "evidence [*4]is not legally sufficient when corroboration required by law is absent," and therefore explicitly requires corroboration for Defendant's confessions.

These distinctions between a Family Court Petition and a Criminal Court Complaint, and between a felony indictment and a misdemeanor Complaint, were not considered by the Courts in People v. Kaminski, supra , People v. Alvarez, supra , and their lineage (See People v. Ross, 12 Misc 3d 755, 814 NYS2d 861 (Crim. Ct. Kings Co. 2006), also cited by Defendant)[FN2]. The Courts in People v. Kaminski, supra , and People v. Alvarez, supra , interpreted Rodney J., supra , as holding that the legislature's failure to apply the corroboration of confession rule to all Defendants was an oversight. The Court in People v. Kaminski supported this conclusion by reasoning that the legislature could not have intended to create different standards of proof for indictments and Complaints, holding "this Court can conceive of no law or logic for requiring the corroboration ... for Grand Jury indictments ... while dispensing with this requirement for misdemeanor petitions." People v. Kaminski, 143 Misc 2d at 1092, 542 NYS2d at 925. This reasoning, however, ignores the fact that under New York Law, a Defendant's contact with the Criminal Justice system, the rights to which he or she is entitled, and even the forum before which he or she will be heard, differ widely depending on whether that Defendant is accused of a felony or of a lesser offense. Compare, e.g., CPL Title H (Preliminary Proceedings in Local Criminal Court), with CPL Title I (Proceedings in Superior Court). Absent further evidence of intent, the more logical conclusion to be drawn from the Legislature's failure to extend the corroboration requirement in CPL § 100.40 is that the legislature did not intend to do so. "A court cannot by implication supply in a statute a provision which it is reasonable to suppose the Legislature intended intentionally to omit." People v. Heller, 180 Misc 2d at 166, 689 NYS2d at 332.

To the extent that People v. Kaminski, supra , People v. Alvarez, supra , and People v, Ross, supra ,[FN3] extend CPL § 60.50 to misdemeanor complaints, we therefore decline to follow these cases, and hold, pursuant to People v. Heller, supra , that the corroboration requirement of CPL § 60.50 does not apply to Criminal Court instruments. See also People v. McKinney, 145 Misc 2d 460, 546 NYS2d 927 (Crim. Ct. Kings Co. 1989); People v. Espanda, 11 Misc 3d 1067(A), 816 NYS2d 699 (Crim. Ct. Queens Co. 2006); People v. Sykes, Crim. Ct., Kings Co., October 18, 2007, McGuire, J., Docket No. 2006KN080800.

The Complaint is Facially Sufficient

In order to be sufficient on its face, an accusatory instrument must allege facts sufficient to provide reasonable cause to believe that the Defendant committed the offenses charged. CPL § 100.40(4)(b); People v. Dumas, 68 NY2d 729, 497 NE2d 686, 506 NYS2d 319 (1986).

[*5]A. The Complaint Sufficiently Alleges Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs (VTL §§ 1192(1), (2), and (3)).

Defendant is charged with a number of offenses under VTL § 1192, Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs, which provides, in relevant part:

1. No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol.

2. ... [n]o person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person's blood as shown by chemical analysis of such person's blood, breath, urine or saliva, made pursuant to the provisions of section eleven hundred ninety-four of this article.

3. ... [n]o person shall operate a motor vehicle while in an intoxicated condition.

Defendant argues that the Complaint insufficiently alleges the element of "operation," citing People v. Walker, 21 Misc 3d 748, 865 NYS2d 530 (Crim. Ct. Kings Co. 2008), where the court held the complaint insufficient, finding "but for the defendant's alleged admission that [h]e had been driving said automobile, there is no corpus delicti of any of the offenses charged..." (Defendant's Aff. ¶6). Our case is factually inapposite to Walker. The Superseding Information clearly states that Police Officer Mignone "observed said vehicle to have damage in that the rear bumper of said vehicle was dented and slightly detached from the vehicle." Thus, assuming arguendo that corroboration of Defendant's statement was required at this stage of the proceedings, the damaged rear bumper would provide the requisite corpus delicti of the offense charged. See People v. Brown, 180 AD2d 480, 579 NYS2d 673 (1st Dept. 1992) (defendant's statement to police that he had been driving an automobile which showed signs of having been tampered with in such a way as to indicate it may have been stolen was sufficiently corroborated to allow a conviction of the defendant for possession of the stolen property); accord People v. Dolan, 1 Misc 3d 32, 770 NYS2d 558 (App. Term, 2d Dept. 2003).

In People v. Booden, supra , where Defendant had been convicted, after a non-jury trial, for operating a motor vehicle while his ability was impaired, which conviction was based in part upon his confession, the Court of Appeals held that circumstances of an accident supporting the inference that the vehicle had been driven by a person under the influence of alcohol were sufficient to corroborate Defendant's confession. Kaminski distinguishes Booden, supra , on the facts, noting that in Kaminski "there is no indication, outside of defendant's admission, that the car he was standing near' had been driven by anyone, intoxicated or otherwise." Booden, supra at 1094. Our fact pattern is more similar to Booden, in that there is evidence of damage to the vehicle in the case at bar, than to the cases cited by Defendant.

In People v. Whyte, 2002 NY Slip Op. 50406(U) (NY Crim. Ct. 2002), cited by Defendant, the court held allegations that Defendant was found sitting on the ground next to a crashed vehicle and Defendant admitted to drinking and "bouncing off one car" facially insufficient. This Court is unpersuaded that either the facts or reasoning in Whyte are applicable to our case. Defendant in Whyte did not make an unequivocal statement that he had been driving, but said "I only remember bouncing off of one car" (supra at 3), a phrase possibly as susceptible to meaning that he walked into the car, as that he was driving and hit the car. The [*6]court in Whyte held the complaint insufficient, finding "nothing to show that defendant had been operating the vehicle and ... no allegation or evidence as to keys or vehicle ownership." Id. at 5. In our case, Defendant walked into a police station to report that he had been involved in an accident, and unequivocally admitted to operating the vehicle in question, his 2004 Toyota, at the approximate time and place.

Finally, Defendant's reliance upon People v. Kocowitz, N.Y.L.J., March 19, 1993, at 23, col. 4 (Crim. Ct. Kings Co.), is based upon a misreading of that case. Distinguishing Booden, the court in Kocowitz notes that the original and first superceding information in Kocowitz are devoid of any allegation that the police officer saw the defendant driving the vehicle or that "some incident took place other than the defendant's own statement," [sic] and that it was not until the second superseding information, filed 245 days later, that there was any allegation that the arresting officer observed the defendant standing outside a vehicle which collided with the highway divider. Id. Thus, while Kocowitz held the original Criminal Court complaint and the first superseding instrument insufficient, the court there held that the second superseding information, containing the additional allegations, was facially sufficient, but was filed too late.

In People v. Espanda, supra , Defendant admitted to operating a motor vehicle and being involved in an accident. It was also alleged that he was observed by the arresting officer at the scene of the accident and exhibited the common law indicia of intoxication. Following Heller, supra , the court held that these factual allegations taken together with his admissions establish reasonable cause to believe that the defendant was involved in a motor vehicle accident while his ability to drive was impaired by alcohol, and "[t]his is all that is required at the pleading stage." Espanda, supra . In our case, where Defendant unequivocally admitted that he had been driving and was just involved in a motor vehicle accident, we find that the complaint sufficiently alleges the element of operation. Defendant's motion to dismiss the counts of Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs (VTL §§ 1192(1), (2), and (3) is therefore denied.

We note that Defendant's Reply also seeks dismissal under CPL § 30.30. However, as Defendant's motion did not seek any relief under that statute, but sought dismissal only under the theory of facial insufficiency, we decline to rule on an entirely new theory raised for the first time on reply. As Defendant's motion reserved the right to make further motions, pursuant to CPL § 255.20(3), Defendant may make a motion pursuant to CPL § 30.30, on proper notice to the People.

Conclusion

For the foregoing reasons, we decline to read the corroboration of confession rule of CPL § 60.50 into CPL § 100.40, and find the Complaint sufficiently establishes the counts of Operating a Motor Vehicle While Under the Influence of Alcohol or Drugs (VTL §§ 1192(1), (2), and (3)). Defendant's motion to dismiss the Complaint is therefore denied.

This constitutes the decision and order of this Court.

Dated:February 20, 2009

Brooklyn, New York [*7]

______________________________

MICHAEL GERSTEIN

J.C.C. Footnotes

Footnote 1:In order to be sufficient, the allegations in a Criminal Court Information must also be non-hearsay. CPL § 100.40(1)(c). Defendant, however, has not alleged that the accusatory instrument contains uncorroborated, unconverted hearsay. Prince, Richardson on Evidence § 8-251 (Farrell, 11th ed) (Confessions are admissible as an exception to the hearsay rule).

Footnote 2:However, the Ross court explicitly recognized, on the authority of People v. Booden, 69 NY2d 185, 505 NE2d 598, 513 NYS2d 87, discussed below, that "circumstances that support the inference that a vehicle was driven by a person under the influence of alcohol will corroborate a defendant's confession." Ross, supra , 12 Misc 3d at 760. Thus, we believe Ross to be compatible with our holding.

Footnote 3:But see footnote 1 above.